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(Cite
as: 749 P.2d 446)
Colorado
Court of Appeals,
Div.
I.
In
re MARRIAGE OF William Joseph BAISLEY, Appellee,
and
Cheryl
Ann Vielle, Appellant.
No.
86CA1110.
Nov. 5, 1987.
Rehearing
Denied Dec. 3, 1987.
Certiorari
Denied May 9, 1988.
The
UCCJA provides that, in general, if two states have concurrent jurisdiction
over custody proceedings, exclusive jurisdiction is conferred on court
in which matter was first raised; however, state in which initial
custody proceeding is pending may stay proceedings if it determines that
another state is more appropriate forum. C.R.S. 14-13-107.
Colorado
court properly exercised home state jurisdiction over minor children
in
custody dispute pursuant to the UCCJA; Colorado court contacted
Montana court to determine most appropriate forum, and Montana declined
to exercise jurisdiction. C.R.S. 14-13-104(1)(a), 14-13-107.
Colorado
trial court did not abuse its discretion in denying mother's motion to
allow testimony to be heard in tribal court regarding child custody; mother
did not attempt to gather evidence in Montana in timely manner. C.R.S.
14- 13-119, 14-13-120.
Mother
was not denied due process by trial court's denial of her motion for continuance
of custody hearing on basis that she was unable to attend hearing and
that State Department of Social Services had not completed custody evaluation
with respect to her; mother's voluntary absence, rather than denial
of continuance or lack of completed custody evaluation, prevented presentation
of witnesses and evidence on mother's behalf. U.S.C.A. Const.Amends.
5, 14.
State
courts may not proceed on petition for custody if another court is exercising
jurisdiction substantially in conformity with UCCJA and that court refuses
to stay its proceedings; however, court is free to determine whether
other court is proceeding in substantial conformity with jurisdictional
requirements of UCCJA. C.R.S. 14-13-107(1).
State
court in which custody dispute was pending properly refused to recognize
ex parte temporary protective order issued by tribal court which prohibited
removal of children from tribe; by failing to contact trial court
where custody matter was pending, tribal court did not act in substantial
conformity with the UCCJA. C.R.S. 14-13-107.
Even
if tribal court had properly exerted jurisdiction over children when it
entered ex parte protective order which stated that children were to be
confined on reservation until jurisdictional problem was resolved, jurisdictional
dispute had been determined by trial court and therefore, trial court
properly declared that tribal order, even if valid, had expired.
Federal
law did not preempt state court jurisdiction over custody disputes arising
in context of Native American divorce proceeding. Indian Child Welfare
Act of 1978, §§ 2 et seq., 4, 25 U.S.C.A. §§ 1901
et seq., 1903; Civil Rights Act of 1968, § 402, 25 U.S.C.A.
§ 1322.
*447
Edwards, Terrill & Mygatt, P.C., Nancy Terrill, Boulder, for appellee.
Holland & Hart, Julia Hook,
Susan N. H. Dixon, Denver, for appellant.
PIERCE, Judge.
Cheryl Ann Vielle, mother, appeals
a trial court order awarding permanent custody of her two minor children
to their father, William Joseph Baisley. We affirm.
The father and mother, an alleged
enrolled member of the Blackfeet Indian tribe, lived as husband and wife
outside the boundaries of the Blackfeet Indian Reservation in Montana
from September 1982 until their separation in June 1985. During
that time, they had two children.
In June 1985, father moved to
Boulder, taking the children with him with mother's consent. During
the next six months, mother called to speak to the children only three
or four times and visited them in Boulder once, but she did not seek their
return.
In January 1986, mother filed for dissolution of marriage and sought custody
of the children in a Montana state court. On January 21, 1986,
father, after having been served with process in the Montana dissolution
proceeding, filed a verified petition for custody under the Uniform Child
Custody Jurisdiction Act, § 14-13-101, et seq., C.R.S. (UCCJA)
in the Colorado court. The Colorado court contacted the Montana
court by telephone to determine which forum should exercise jurisdiction
over the custody issue. Concluding that Colorado was the home
state of the children and that it had the most significant connections
with the children, the Montana court declined to exercise jurisdiction
over the custody issue. An oral report of this conference
was put on record by the Colorado court.
On April 30, 1986, a temporary
custody hearing was held in the Colorado court with both parties present.
Pursuant to the parties' agreement, father was given physical
custody of the children from April 30 through June 11, and mother was
given physical custody from June 11 until the time of the permanent custody
hearing. The custody hearing was then set for the end of July.
Father returned the children
to mother in June. On July 15, 1986, mother sought and received
an ex parte
emergency protective order from the Blackfeet tribal court prohibiting
removal of the children from the reservation until the question of the
proper jurisdiction on the custody issue as between the Blackfeet tribal
court and the Colorado court was determined. The tribal court
did not contact the Colorado court at that time or at any time thereafter.
On July 18, 1986, counsel for mother filed in the Colorado
court a motion to dismiss, or in the alternative, to hear testimony in
the Blackfeet tribal court but did not inform the Colorado court of the
ex parte
order until July 24.
On the morning of the permanent
custody hearing, July 28, the trial court denied mother's motions, affirming
the propriety of its exercise of jurisdiction and determining that the ex parte
emergency protective order issued by the Blackfeet tribal court was not
an exercise of jurisdiction in substantial conformity with the UCCJA and
that, in any event, that order had expired. Mother's ensuing
request for a continuance was denied by the Colorado court. Without
mother present, the hearing proceeded with her counsel participating.
Evidence was presented, and permanent custody of the children
was awarded to father.
I.
A.
Mother first contends that the Colorado court improperly exercised jurisdiction
under *448
the UCCJA. She argues that Colorado was not the children's
home state. We disagree. The record completely
refutes this contention. Sections 14-13-103 and 14-13-104,
C.R.S., were complied with. See
Barden v. Blau, 712
P.2d 481 (Colo.1986); McCarron
v. District
Court, 671 P.2d 953
(Colo.1983); In
re Marriage of Severn,
44 Colo.App. 109, 608 P.2d 381 (1980).
B.
Mother also contends that the Colorado court's exercise of jurisdiction
was improper because custody proceedings were pending in Montana. Again,
we disagree.
The
UCCJA provides that, in general, if two states have concurrent jurisdiction
over custody proceedings, exclusive jurisdiction is conferred on the court
in which the matter was first raised. McCarron
v. District Court, supra; In re Petition of Edilson,
637 P.2d 362 (Colo.1981). However, pursuant to § 14-13-107,
C.R.S., the state in which the initial custody proceeding is pending may
stay proceedings if it determines that another state is the more appropriate
forum. In re Petition
of Edilson, supra.
Under Montana law, the decision to decline exercise of jurisdiction
is entirely within the discretion of the trial court. In
Re Marriage of Bolton,
690 P.2d 401 (Mont.1984).
The
Colorado court contacted the Montana court to determine the most appropriate
forum. See
§ 14-13-107, C.R.S. Although a contemporaneous record
of this consultation was not made, the Colorado court, in denying mother's
motion to dismiss, made findings which reflect that the Montana court
declined to exercise jurisdiction. Under these circumstances,
the Colorado court
did not abuse its discretion by exercising jurisdiction.
Because the Colorado court properly
exercised home state jurisdiction under § 14-13-104(1)(a),
C.R.S., we need not address mother's contentions concerning jurisdiction
under § 14-13-104(1)(b), C.R.S.
II.
Mother contends that the
trial court abused its discretion in failing to confer with the Blackfeet
tribal court and in denying her motion to hear testimony in the Blackfeet
tribal court. We reject these contentions.
Section 14-13-119, C.R.S., permits
a party to adduce testimony of witnesses by deposition or otherwise in
another state. Section 14-13-120, C.R.S., allows the trial court
to request a court of another state to conduct a hearing, to order a party
to give evidence under the procedures of that state, or to have social
studies made concerning custodial arrangements for a child. Fry
v. Ball, 190 Colo.
128, 544 P.2d 402 (1975).
Mother knew in May that the custody
hearing had been set for the end of July. On July 18, 1986,
she filed the motion asking the trial court to allow testimony to be heard
in the Blackfeet tribal court. Because her attempt to gather
evidence in Montana was not undertaken in a timely manner, there was no
abuse of discretion in the Colorado court's denial of her motion.
III.
Mother
also contends that the trial court abused its discretion in denying
her motion for a continuance of the custody hearing. She argues
that she was denied due process of law because she was unable to attend
the hearing and because the Montana Department of Social Services had
not completed a custody evaluation with respect to her. Again,
we disagree.
The grant or denial of a continuance
is a matter entrusted to the sound discretion of the trial court, and
its decision will not be disturbed on review absent a clear abuse of that
discretion. Butler
v. Farner, 704 P.2d
853 (Colo.1985); In
Re Marriage of Lorenzo,
721 P.2d 155 (Colo.App.1986).
One of the reasons given for
the Montana Department of Social Service's failure to complete its custody
evaluation was that the evaluators had tried for two days, but were unable
to contact the mother. Mother did not seek a continuance until
the morning of the custody hearing. Thirteen *449
days prior to that date, she had sought and received a temporary protective
order from the Blackfeet tribal court which prohibited removal of the
children from the Blackfeet Indian reservation and purported to raise
in the Blackfeet tribal court the question of the Colorado court's jurisdiction.
On July 24, 1986, the Colorado court ordered her to appear
at the custody hearing on July 28, but she did not comply.
On the basis of these facts,
the Colorado court concluded that mother's request for a continuance was
interposed solely for delay, see
Butler v. Farner, supra,
and that it was mother's voluntary absence, not the denial of the
continuance or the lack of a completed custody evaluation, which prevented
presentation of witnesses and evidence on her behalf. Accordingly,
there was no abuse of discretion in the Colorado court's denial of a continuance.
IV.
Mother next contends that the Colorado court erred in refusing to recognize
the Blackfeet tribal court's ex
parte emergency protective
order. We disagree.
The Blackfeet Tribal Law and
Order Code, Ch. 2, § 1 (Blackfeet Code) gives a state court
and the tribal court concurrent, nonexclusive jurisdiction of all suits
concerning a member of the tribe. The Blackfeet Code, Ch.
3, §§ 1 & 2, allows a state court to exercise jurisdiction
over marriage and divorce and provides that marriage and divorce shall
be governed by state law. These provisions have been interpreted
to allow a state court to make determinations of issues that are incident
to divorce such as child custody. See
United States ex rel. Cobell v. Cobell,
503 F.2d 790 (9th Cir.1974); Application
of Bertelson, 189 Mont.
524, 617 P.2d 121 (1980).
Mother voluntarily invoked the
Montana court's jurisdiction for divorce and, incident thereto, sought
determination of the children's custody. Thereafter, the Montana court
determined that Colorado was the proper state in which the custody issue
should be decided, and the Colorado court properly assumed jurisdiction.
Under
§ 14-13-107(1), C.R.S., Colorado courts may not proceed on a
petition for custody if another court is "exercising jurisdiction
substantially in conformity with [the UCCJA]" and that court refuses
to stay its proceedings. However, a Colorado court is free
to determine whether the other court is proceeding in substantial conformity
with the jurisdictional requirements of the UCCJA. Bakke
v. District Court,
719 P.2d 313 (Colo.1986).
By
the express terms of the Blackfeet Code, the state court was given jurisdiction
over divorce and custody matters arising incident thereto. See
United States ex rel. Cobell v. Cobell, supra.
Thus, by failing to contact the trial court where the custody
matter was pending, the Blackfeet tribal court did not act in substantial
conformity with the UCCJA. See
§ 14-13- 107, C.R.S.; McCarron
v. District Court, supra.
Accordingly, we find no error in the Colorado court's refusal
to recognize the ex
parte temporary protective
order. See
Bakke v. District Court, supra.
Even
if there had been jurisdiction properly exerted by the tribal court, the
petition for the ex
parte order and, implicitly,
the order itself acknowledged that the jurisdictional question was being
considered in the Colorado court. The order states only that
the children were to be confined on the reservation until the jurisdictional
problem was resolved. This jurisdictional dispute was determined
by the Colorado court, and therefore, once
it had determined the jurisdictional issue, the trial court properly declared
that the tribal order, even if valid, had expired.
We
reject mother's contention that federal law preempts state court jurisdiction
over custody disputes arising in the context of a Native American divorce
proceeding. Mother concedes that the Indian Child Welfare
Act, 25 U.S.C. § 1901, et seq., is not applicable to a divorce
proceeding in which child custody is in dispute. 25 U.S.C. § 1903;
In re Custody
of S.B.R., 43 Wash.App.
622, 719 P.2d 154 (1986). Moreover, 25 U.S.C. § 1322
cannot be interpreted to preempt state court jurisdiction in *450
such matters. Nor are we aware of any other federal authority governing
child custody in a dissolution proceeding in which a tribal member was
a party that would preempt state court jurisdiction. See
generally Estate of Standing Bear v. Belcourt,
631 P.2d 285 (Mont.1981).
Judgment affirmed.
METZGER and CRISWELL, JJ., concur.
749 P.2d 446
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